By a complaint dated 12 March 2011 Mr and Mrs P applied to the Crown Court at Exeter for an order that Devon County Council, the local highway authority, put in proper repair “an ancient public highway known as the Glebe Yard to Kimber Road path in the Parish of Northlew, which connects with public roads at each end”.

Under Section 56 Highways Act 1980, the court had to answer a simple question; does the highway over Glebe land exist, on the balance of probabilities?

The legally material factor in the exercise of the decision-making discretion was either option (1) or (2), there was not a third option.

(1) If a highway does exist over Glebe land on the balance of probabilities, the court SHOULD make an order requiring the respondents to maintain that highway.

(2) If the highway does not exist over Glebe land on the balance of probabilities, the court SHOULD dismiss the complaint and award adverse costs to the Council.

Our complaint was based in public nuisance, not in negligence. The absolute statutory duty to maintain the surface of the highway over Glebe land, in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood as a footpath, at all seasons of the year without danger caused by its physical condition.

The duty under section 56 is outlined in Goodes v East Sussex, paragraph 7: http://www.bailii.org/uk/cases/UKHL/2000/34.html“7. The common law The Act of 1959 (following earlier legislation) provided, in place of the old remedy by way of indictment, a procedure of complaint to the Crown Court which is now contained in section 56 of the Highways Act 1980. But the nature of the duty remained the same. It was described by Diplock L.J. in Griffiths v. Liverpool Corporation [1967] 1 Q.B. 374, 389:

"The duty at common law to maintain, which includes a duty to repair a highway, was not based in negligence but in nuisance. It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain, and the statutory duty which replaced it was also absolute."

The duty is not absolute in the sense that the road has to be perfect. As Diplock L.J. explained in the later case of Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497, the duty is to put the road:

"in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition."

But the highway authority has an absolute duty to maintain the highway in a state which satisfies this objective standard. It must levy whatever rate is necessary for the purpose. If the condition of the highway falls short of the statutory standard, the highway authority is in breach of duty. It is no answer that it took all reasonable care or that its resources were insufficient.”

Burton J reached a decision in our case, which depended on a misinterpretation of his statutory responsibilities under Section 56 of the Highways Act 1980 as outlined in Goodes v East Sussex, paragraph 7 above. He found that a highway does exist over Glebe land, but the court did not have to follow the absolute statutory duty to maintain that highway; if a substituted access to Glebe land was available over adjacent land. Burton J failed to comply with an absolute statutory requirement.

I proved the three essential elements that the highway over Glebe land exists, dedication by the landowner, acceptance by the public and capacity to dedicate. The council provided photographs of the hedge rooted in the surface of Glebe Yard, showing that it is out of repair. Burton J admits that the highway passes over Glebe land, he therefore lacked the jurisdiction to dismiss the complaint and refuse to make an order for its repair.

An order to dismiss the complaint is without jurisdiction as the admitted highway runs over Glebe land and is admitted to be out of repair. The order is void as it results from a fundamental defect in proceedings as it allows the criminal offence of disturbance of the highway surface and obstruction to continue. Burton J failed to comply with the statutory requirement under Section 56 of the Highways Act 1980. We are affected by the void order and have a right –ex debito justitiae – to have it set aside.

Burton J’s order to dismiss the complaint is founded on the Crown Court’s void act to dismiss the complaint without applying the standard of probabilities; the higher Court’s decision is also void. A ‘void’ order has no legal effect ab initio (from the beginning/outset) and therefore does not need to be appealed, which means that Burton J does not have discretion to refuse to set aside the order.

In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it.

The highway authority should not be allowed to abuse the process of Court by failing to comply with a statutory procedure and also keep the benefit of an adverse costs award and for that reason also a void act is void and it does not affect the rights of any third party. Wandsworth London Borough Council v. Winder [1985] A.C. 461: (i) a person may ignore a void claim and rely on it as a defence when necessary. If the defaulting Council seek to enforce the void charging order, we will rely on the admitted highway over Glebe land as a defence.

Burton J’s order to dismiss the complaint is founded on the Crown Court’s void act to dismiss the complaint without applying the standard of probabilities;

And therein lies your downfall.

First this could not more clearly be 'not a fundamental defect'. Few things in the law will ever prove more certain.

Second, and in your case if I may say so, fundamentally, you reveal that your objection is actually to a conclusion on the facts. I have said before that you need too be careful in your phraseology. There is a standard of proof. That standard in this case is (I suspect) the balance of probabilities. If the crown court judge looked at the evidence and found that there was evidence both ways, but that he felt that you had not established a balance which swung it in your favour, then you had not proved your case, and he was obliged to find that you lost.

Burton J's task was very simple. Did there exist evidence both ways before the recorder? If there was such a balance, it was _not_ his job to look at which way the balance fell in his mind, but to say that the district judge/recorder was entitled to his own assessment. He reviews the way n which the decision was reached, not the decision.

I do not mind how many times you repeat some very strange assertions about Burton J's duties, you will not change the result.

Firstly your argument is that a footpath along part of Glebe land does not mean along the whole. When case law Harvey v Truro RDC, is proved to blow your argument completely out of the water, you or a gang member simply lock the topic, even though I had expressly asked if I could keep both topics open. This forum is not to discuss the law?

The Recorder at the Crown Court had to decide whether the highway over Glebe land asserted by the complainants to exist did, or does, on the balance of probabilities, exist. The Recorder had to apply this standard to his decision and he failed to do so. You say this is not a fundamental error of law?

The Recorder had to say the highway does not exist, and it never existed over Glebe land, on the balance of probabilities, in order to dismiss the complaint and the forum thinks that his failure to do so is not a fundamental error of law and is of no importance?

The Recorder looked at the evidence and found that the highway over Glebe land did exist, but that he would prefer to ignore it and not to make an order for its repair.

Burton J’s task was very simple at paragraph 3 of his judgment was there any evidence before the Recorder upon which he could reach the conclusion he did. Once he had admitted that the path runs over Glebe land from Glebe Yard to Kimber Road as alleged by the complainants, he was not entitled to dismiss the complaint for an order for its repair. He found that the Recorder had dismissed the claim without applying the balance of probabilities to his decision. This was clearly a fundamental error of law. But Burton J made a very strange assertion at paragraph 13:

“I therefore am completely unpersuaded that the Recorder erred in law in his primary conclusion that he was not satisfied that there was a path B to C, and that he was equally entitled, once the matter was before him, given that there was the admitted footpath from F to B, to conclude that on the balance of probabilities the much likelier position was that it ran from B through G to A, but that certainly he was entitled to dismiss the claim by the appellant.”

Is the above paragraph judicial tergiversation, or is it untruthful? Does anyone on the forum have an opinion?

Atticus, the forum are biased against me discussing whether the judge in my case was fair and whether he acted within the law. I am not used to discussion forums and I lack their social niceties and seem to offend the moderators very frequently, so as you lock my topics when they get interesting. I presume that I am not welcome on this forum.

We do not seek to stifle discussion. However, just as the purpose of litigation is to resolve disputes and so there has to be finality, there surely has to be an end to discussion especially when all that can be said has been said (several dozen times over).

Thank you for unlocking my topic, Atticus. Yes, I can be infuriating; my husband of 44 years often says so. What I have said above has not been answered. Does anyone on the forum have an opinion on the following questions?

Q1. The Recorder had to apply the legal standard to his decision and he failed to do so, is this failure a fundamental error of law or is it of no importance?

Q2. The Recorder had to say the highway does not exist, and it never existed over Glebe land, on the balance of probabilities, in order to dismiss the complaint; is his failure to do so a fundamental error of law or is it of no importance?

Q3. Is the above paragraph recited by Burton J, judicial tergiversation, or is it untruthful?

Q4. Both judges looked at the evidence and found that the highway over Glebe land did exist, but that they would prefer to ignore it and not to make an order for its repair; is this failure a fundamental error of law or is it of no importance?

I would like to discuss this with anyone on the forum. Do you have an opinion, on any of the questions, Atticus?